The Logic of Contraceptive Rights

Dissenting opinions in the Hobby Lobby case and the editorials penned in reaction to the Wheaton injunction fixate on reproductive rights. Specifically, many argue that women have an incontrovertible right to the full breadth of contraceptive care, including IUDs and the morning after pill (everything approved by the FDA). To assert a right, though, is not to establish itand these assertions cannot withstand scrutiny.

Rights are generally conceived as a matter of entitlement. Now, one is entitled to something for a reason. Typically one retains a right to something because of some recognizable dimension of the claimant. For instance, because I am a human being, I have the right to life, liberty, and the pursuit of happiness. This is a natural right. Or, because I am a citizen of the United States at least 18 years old, I can vote in the next election. This is a legal right.

Those who argue for a right to universal contraceptive coverage found their claims on the natural right of equality. But equality, when divested of the legitimate recognition of difference, becomes a frenzied pursuit of leveling in every aspect of material human existence.

To achieve equality, some argue that women must exercise equal dominion over reproductive decisions (See Planned Parenthood of Southeastern Pa. v. Casey). To offset the fact that pregnancy is not physically shared by a man and a woman during the nine months of gestation, equality for the woman requires the ability to prevent conception by any means and, if necessary, abort the child. Anything less is seen to hamper women’s participation in the social and economic sphere.

On the basis of this interpretation of natural right, those who advance the cause of comprehensive contraceptive coverage assert a legal right to the full breadth of contraception. As it currently stands, women pay more out-of-pocket healthcare expenses. Those pushing for complete equality see this as a disparity born of the government’s failure to craft legislation which forces businesses to adjust for gender difference by healthcare compensation. The Contraceptive Mandate was formulated to address precisely this issue and help secure liberty and justice for half of America’s citizenry. And yet, despite the undeniable force of the argument, it does not obtain.

This idea of equality steamrolls the reality of gender difference. Childbearing, rather than being the material aspect of a properly feminine excellence, represents an anatomical obstacle to be overcome financially. As a result, women suffer a foreign standard of healthcare provision in a market tailored to the context of family life and expense sharing.

This argumentation also tacitly undermines the dignity of motherhood. By continuing to speak of pregnancy management and reproductive control in terms of control, by speaking of abortifacients euphemistically, and by evaluating pregnancies with a disproportionate emphasis on whether or not they are planned and economically tenable, the argumentation depreciates motherhood.

Finally, it is untenable to affirm that every FDA-approved contraceptive qualifies as indispensible healthcare. The logic leaps positivistically from FDA approbation to universal entitlement. Setting aside the question of whether contraception formally qualifies as healthcare, it is precipitous to affirm that gender equality demands that the government arrange for inexpensive access to every approved mode of contraceptive care. While Justice Ginsburg was quick to point out that many women would have chosen these options in the past had they been financially accessible, she fails to acknowledge that they have historically been expensive for a reason, namely that they are luxury contraceptive options. In purchasing an IUD and paying for its insertion, a woman pays for ten to twelve years of almost guaranteed sterility. This seems to stretch the idea of healthcare to the breaking point and risks treating pregnancy as a disease.

Clearly, there are deficiencies in the rights language employed by advocates of universal contraceptive coverage. By inquiring more deeply into the logical tour de force at work here, one is equipped to combat the vehemence of its claims. Rights speech, if only inadequately substantiated, proves no more demonstrative than the common stock of emotivist and therapeutic logic that thwarts genuine public discourse.